Timothy Kingcade Posts Archives - Page 77 of 155 - Kingcade Garcia McMaken, P.A. Bankruptcy Attorneys

Bankruptcy Law, Debt Relief, Student Loans, Timothy Kingcade Posts

Bankruptcy Case Could Unchain Americans from Student Loan Debt

Posted on October 23, 2015by Admin

An unemployed 65-year-old man, acting as his own attorney, has spent three years appealing his way to the Boston federal court that is now hearing his case. Not only will a win relieve him of hundreds of thousands of dollars in student loan debt, the verdict could fundamentally change the way U.S. bankruptcy courts handle borrowers who cannot repay their student loans.

While most consumer debt is discharged in bankruptcy, federal rules make it nearly impossible for borrowers to eliminate their student loan debt. In the 1970’s, Congress added new rules to the law that excluded most student debt from that relief. Anyone trying to discharge student loan debt in bankruptcy must prove that repaying it would constitute an “undue hardship.” However, lawmakers never defined an undue hardship, so it is left to the courts to determine just how destitute a borrower needs to be to qualify for relief.

The appeal seems to have prompted the First Circuit Court of Appeals to reconsider the definition of hardship. A judgment in favor of the debtor could have a significant impact on other courts, which have not looked at this issue in some time. This case could mark the first time a federal court weighs in on modifying the standards in a decade.

Federal student loan debt stands at $1.2 trillion, making it the largest source of consumer debt outside of mortgages. This figure is expected to double in the next 10 years, with the rising costs of higher education. Some 7.5 million student debtors are severely behind in paying the government back.

From 2001 through 2007, the debtor in this case took out several Parent PLUS student loans (federal debt parents can use to finance their kids’ education) to send his three children to college. After accruing interest, the total debt ballooned to $246,500. In 2002, he lost his job as president of a manufacturing company when it closed its doors to move overseas.

He has been unable to find work in the last 13 years, he said, because he is viewed as too old for executive positions and overqualified for lower-level jobs. He lives on the salary his wife makes as a teacher’s aide, less than $15,000 in annual income. Their retirement savings has been drained and their house just went into foreclosure. Even if he were able to find a job paying $50,000 per year until he turned 77, he calculated, the balance of his loans would still grow to $500,000.

Consumer advocates agree, most of debt that could be discharged in bankruptcy is not collectible because the bankrupt borrower cannot pay it back. The idea of bankruptcy is to give consumers relief from overwhelming debt and a fresh financial start. If a debtor is never going to be able to repay their debts, why are we not giving them relief?

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For borrowers who are struggling with student loan debt, relief options are available. Many student loan borrowers are unaware that they have rights and repayment options available to them, such as postponement of loan payments, reduction of payments or even a complete discharge of the debt. It is important you contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade & Garcia, P.A. has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

Obama Administration asks Congress to grant bankruptcy protection to Puerto Rico

Posted on October 22, 2015by Admin

The Obama administration has asked Congress to grant bankruptcy protection to Puerto Rico in an attempt to restructure its $72 billion debt. The proposal would allow Puerto Rico and other territories to seek financial restructuring under the supervision of a federal bankruptcy court.

The administration went a step further by asking for new oversight of Puerto Rico’s finances, restructuring the territories Medicaid funding system and extending the earned income tax credit to Puerto Rican taxpayers.

“The administration has no plans to provide a bailout to Puerto Rico,” White House press secretary Josh Earnest said.

“What we have said is that the administration has an interest in working with officials inside Puerto Rico to help them deal with the significant financial challenges that are facing the government there,” he continued.

Governor Alejandro Garcia Padilla has been trying to slash expenditures and restructure Puerto Rico’s debt since taking office three years ago. However, in July he was forced to announce that it was not enough and the government would begin defaulting on its massive debt.

The inability to repay that debt is a big threat to American investors, who may not realize how much money they have tied up in the island’s economy.

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If you are in financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade & Garcia, P.A. has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.

Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

Bankruptcy Reform Ten Years Later

Posted on October 21, 2015by Admin

The Bankruptcy Abuse and Consumer Protection Act became law on October 17, 2005. This legislation was prompted in part by a spike in personal bankruptcy filings and was an effort by Congress to reduce the misuse of the bankruptcy system. Congressional supporters of the law worried that abuse of the bankruptcy laws would unfairly increase costs for non-bankrupt consumers.

Ten years later, it is questionable as to whether the reform law actually achieved its goals. The number of bankruptcy filings has dramatically declined since 2005, from almost 1.7 million to 920,000 in 2014, despite the Great Recession of 2008.

The “means test,” which measures a prospective bankruptcy filer’s ability to repay their debts along with other substantial changes to the bankruptcy code has decreased the number of “opportunistic” bankruptcy filings, but has also made filing for bankruptcy more difficult for consumers.

The requirement that prospective debtors must undergo credit counseling prior to filing for bankruptcy has had a positive impact. According to the Department of Justice, there are at least 140 nonprofit agencies approved by the government to provide pre-bankruptcy counseling. There are an additional 220 nonprofit entities approved to provide education for consumers while in the process of filing for bankruptcy.

These agencies are screened to make sure debtors are receiving valuable advice, free from scammers who prey on consumers in financial distress. These resources also provide consumers with valuable financial tools to help them avoid having to file for bankruptcy, again.

If you have any questions on this topic or are in a financial crisis and considering filing for bankruptcy, contact an experienced Miami bankruptcy attorney who can advise you of all of your options. As an experienced CPA as well as a proven bankruptcy lawyer, Timothy Kingcade knows how to help clients take full advantage of the bankruptcy laws to protect their assets and get successful results. Since 1996 Kingcade & Garcia, P.A. has been helping people from all walks of life build a better tomorrow. Our attorneys’ help thousands of people every year take advantage of their rights under bankruptcy protection to restart, rebuild and recover. The day you hire our firm, we will contact your creditors to stop the harassment. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.

Bankruptcy Law, Debt Relief, Foreclosures, Timothy Kingcade Posts

Homeowners get Foreclosure Dismissed; Could Own Home Free and Clear

Posted on October 20, 2015by Admin

A New York judge recently dismissed a foreclosure case against a mother and daughter, ruling that the bank missed New York’s six-year deadline to file its lawsuit. The decision could mean mortgage payments disappear and the two own their home free and clear, more than eight years after their lender foreclosed on them.

State Supreme Court Justice William Rebolini decided in favor of the family, writing that U.S. Bank National Association was “untimely” in suing last year to take back the home. In May 2006, the family took out a $250,000 mortgage to fund home repairs, but shortly after one of the relatives left the home and the owner underwent two difficult surgeries. As a result, payments were missed.

The owner and her daughter applied for loan modifications four times, but lenders who bought and sold the loan denied their requests. A lender that previously held the mortgage sued to foreclose in March 2007, demanding the entire mortgage balance due. By calling in the loan, the clock started ticking on New York’s six-year statute of limitations for such lawsuits.

The lender could have used a legal tactic to stop the six-year clock, but failed to do so. In this case and others like it, the statue of limitations exists for a reason and there is an obligation on the part of the lender to bring the action on a timely basis. This seems to be a growing trend, as a number of homeowners in New York are asking judges to dismiss foreclosure cases because the statute of limitations has expired. Banks can avoid getting themselves in this situation by giving homeowners a loan modification, helping them cure their default.

In Florida, some courts have ruled lenders cannot bring foreclosures if certain criteria are met: the lender already filed for foreclosure, demanded payment of all the money borrowed, and lost its foreclosure case. If it fails to file another action within five years of the first lawsuit, the lender can no longer foreclosure and evict the residents, some courts have ruled.

Click here to read more on this story.

Choosing the right attorney can make the difference between whether or not you can keep your home. A well-qualified Miami foreclosure defense attorney will not only help you keep your home, but they will be able to negotiate a loan that has payments you can afford. Miami foreclosure defense attorney Timothy Kingcade has helped many facing foreclosure alleviate their stress by letting them stay in their homes for at least another year, allowing them to re-organize their lives. If you have any questions on the topic of foreclosure please feel free to contact me at (305) 285-9100. You can also find useful consumer information on the Kingcade & Garcia website at www.miamibankruptcy.com.

Bankruptcy Law, Debt Relief, Foreclosures, Timothy Kingcade Posts

Precedent Overturned to Award Debtor Fees

Posted on October 19, 2015by Admin

The Ninth Circuit recently overturned precedent allowing for attorney’s fees in a debtor’s prosecution of a creditor, after the creditor violated an automatic stay. The case transpired after a woman filed a lawsuit against Wells Fargo subsidiary America’s Servicing Company in 2009 after it sold her home at a trustee’s sale, despite the fact that a stay had been entered in a Nevada bankruptcy court.

After the bankruptcy court found the company willful in its intent, it granted the woman $80,000 in sanctions and damages – including $20,000 in attorney’s fees. America’s Servicing argued on appeal that the bankruptcy court had improperly included the attorney’s fees with the “actual damages” awarded, and a federal judge reversed that portion of the award.

The woman then sought an additional $10,000 in attorney’s fees for her defense of the company’s appeal. The bankruptcy court denied this, finding that the fees did not constitute “actual damages” because the stay violation had ended before she had to challenge the appeal. But the Bankruptcy Appellate Panel reversed the decision and granted the fees, and the Ninth Circuit upheld the panel’s judgment.

In a 20-page opinion, Circuit Judge Paul Watford wrote that a crucial precedent case is Sternberg v. Johnston, in which the circuit held that the statute at issue allows a debtor to recover only those fees incurred to end the stay violation itself, not the fees incurred to prosecute a damages action.

But Watford pointed out that Sternberg “misconstrued the plain meaning” of the statute, and the circuit overruled the case to the extent that it was inconsistent with its opinion.”Rather than decide whether Sternberg‘s holding extends to the facts of this case, we think the better course is to jettison Sternberg‘s erroneous interpretation of [the statute] altogether,” he said.

Watford said that Congress’s inclusion of the automatic stay provision “strengthened the remedies previously available to debtors injured by willful stay violations,” and it “makes an award of actual damages and attorney’s fees mandatory, and grants bankruptcy courts the discretion to impose punitive damages in appropriate cases.”

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Bankruptcy Law, Credit, Debt Relief, Timothy Kingcade Posts

Reality TV star Indicted on Bankruptcy Charges

Posted on October 16, 2015by Admin

A federal grand jury has indicted “Dance Moms” star Abigale “Abby” Lee Miller, 50, on 20 counts of bankruptcy fraud. The indictment alleged she concealed about $755,000 in assets and made false bankruptcy claims. If guilty, Miller could be sentenced to five years in prison for each count.

According to the indictment, Federal bankruptcy judge Thomas Agresti was ready to approve Miller’s Chapter 11 voluntary bankruptcy reorganization when he suddenly ordered a new hearing that required Miller to fully disclose her income and contracts.

The new hearing was prompted after he was channel surfing one night and saw ads for Miller’s upcoming, “Ultimate Dance Competition,” “The Maniac is Back,” and her appearance on “American Idol.” If it weren’t for the judge seeing the commercials, he said he would have never known about the contracts and additional income.

Miller is going to have to do some fancy footwork to get out of this one. Lying to a federal bankruptcy judge is a crime, which undermines a process that is designed to give honest, hardworking individuals who are overwhelmed by debt, a fresh financial start.

When Miller filed for voluntary bankruptcy reorganization, she listed about $325,000 in assets — mostly consisting of her dance studio in Penn Hills and a house in Davenport, FL— and listed about $356,000 in debts. But according to prosecutors, she hid more than $755,000 in income from her reality TV show, “Dance Moms,” several TV spin-offs and her merchandise and apparel sales.

Miller’s biggest debts were the mortgages on the two buildings, a $5,400 credit card debt and unpaid property and other taxes, according to court records. While she owed money to several vendors, the debt amounts owed were all less than the credit card debt.

During the three years of the bankruptcy proceeding, Miller was supposed to deposit her income into a special account and report that income to the court. Instead, she set up separate bank accounts and funneled her income from the TV show and other ventures into those accounts, prosecutors said.

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Bankruptcy Law, Credit, Debt Relief, Student Loans, Timothy Kingcade Posts

BEWARE: The Dangers of Private Student Loans

Posted on October 13, 2015by Admin

Many student loan borrowers accept the financial aid packages placed before them by their school’s financial advisors. These funds can include numerous private loans covering what federal loans do not. What many borrowers do not realize is that these private loans come with higher interest rates and few relief options if they cannot afford the payments upon graduation. Parents and relatives who co-sign on these loans are also unaware of the consequences.

That’s why when a borrower runs into financial trouble; the problem can quickly become a family affair, leaving parents and grandparents on the hook if they co-signed on these loans. Many co-signers incorrectly think of “co-signing” as the equivalent of providing a reference. They could not be more wrong. In fact, the loan is just as much the co-signers loan as it is the borrowers. Many times, they do not realize the loan is their loan until they try to refinance their mortgage only to have the lender refuse the request because they have too much debt. Unlike federal loans, which typically have the protections of income-based repayment plans and forgiveness programs, private loan borrowers are at the mercy of their lenders.

Private loans make up only an estimated 7 to 10 percent of the $1.27 trillion student loan debt. But with the cost of college increasing, borrowers are left to rely more on these loans as federal loans are not enough to cover all expenses. For the past three years, the Consumer Financial Protection Bureau has been collecting consumer complaints on private loans and has found that borrowers are hitting road blocks when they ask their lenders for help. This should serve as a flashing “buyer beware” sign for prospective borrowers and co-signers.

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Bankruptcy Law, Credit, Debt Relief, Student Loans, Timothy Kingcade Posts

Student Loan System Stacked Against Borrowers

Posted on October 12, 2015by Admin

In a recent report issued by the Consumer Financial Protection Bureau, student loan borrowers are experiencing high levels of distress compared with borrowers with other types of consumer debt. Even with the economy and job market improving, more than one in four student loan borrowers are delinquent or in default on their debt obligations.

Approximately 41 million Americans owe $1.2 trillion in student loan debt. The median debt burden among borrowers was $20,000 in 2014, up from $13,000 in 2007.

Among the biggest loan service providers are Navient, Great Lakes and Discover Banks. These companies manage borrowers’ accounts, process payments and enroll them in alternative repayment plans- including those based on a fixed share of the borrowers’ income.

With no federal standards governing these organizations, the student loan servicers have great leeway in their practices. What’s worse is that borrowers are not allowed to choose their servicers. So if problems occur, the student loan borrower cannot take their business elsewhere.

One of the common borrower complaints among the roughly 1,200 people surveyed was that servicers simply failed to follow instructions. Borrowers hoping to reduce the cost and length of their repayment period often asked servicers to apply payments to their higher-cost loans, first. In numerous incidences, these requests were ignored.

Improper levying of late fees, losing paperwork and making repeated requests for documentation were other practices cited. Perhaps the biggest complaint by borrowers was the failure of student loan servicers to advise them of all their repayment options. In many cases, it meant the borrowers not knowing they were eligible for student loan debt relief.

These relief options include: repayment plans for federal loans based on a borrower’s income and family size or debt forgiveness programs for borrowers who work in public service. Members in the military also have the right to lower interest rates while on active duty.

A recent government report revealed that 51 percent of student loan borrowers nationwide are eligible for income-based repayment plans, but only 15 percent are enrolled. Rather than offer these programs, servicers are quick to recommend forbearance, which stops payments temporarily- but not the interest from piling on. This is an expensive alternative. Some private student loan servicers charge a $150 fee to put an account in forbearance.

This has been compared to the aftermath of the housing crisis, where mortgage servicing companies made it harder for homeowners trying to repay or renegotiate their loans. Borrowers and tax payers deserve better. Repaying student loans is challenging enough without servicers adding to the burden with incompetence and questionable practices.

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Bankruptcy Law, Debt Relief, Timothy Kingcade Posts

Court of Appeals Rules Foreclosure Service Challenges are getting old

Posted on October 9, 2015by Admin

The Fourth District Court of Appeal is losing its patience when it comes to homeowners having to prove they were properly served court documents in foreclosure cases. In one of its recent rulings, the court took an extra step by saying, “We…write to address the issues raised here because this court has received numerous other appeals raising the same or similar issues recently,” Judges Robert Gross, Spencer Levine and Alan Forst wrote in the unsigned opinion.

The homeowners in the above case want to overturn the summons and return-of-service documents filed with the court to confirm the process server properly delivered the papers and informed them of the litigation filed against them by JPMorgan Chase Bank, N.A., which inherited the account from Washington Mutual.

The Florida Rules of Civil Procedure allow private companies and deputies to provide service of process. Under the rules, process servers must provide a return-of-service form with several details, including when the process server received the court documents, the date and time the papers were served, the manner of service and the name of the person served.

The couple claims they were never served- even though the process server said otherwise, there was no evidence to show the return-of-service documents were properly executed and complied with Florida law. The couple argues these documents were inadmissible hearsay.

The appellate panel on the case suggested the homeowners arguments were nothing new and had been resolved by at least seven previous rulings. It rejected the couple’s argument that the documents were hearsay. The court also rejected claims that the wife was not home when the process server served her the papers because the process server “described her by race, height, weight and hair color.”

The attorney for the homeowners says this is not the issue. The issue is what the process server did when he delivered the papers. What is often seen on the forms is the process service companies have access to background information software. It is easy for them to run that software, which has access to a driver’s license photo and description. It does not mean they actually saw the person.

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Foreclosures, Timothy Kingcade Posts

Florida Slowest State to Administer Foreclosure Aid

Posted on October 7, 2015by Admin

According to a report by federal regulators, the Sunshine State is behind other states when it comes to disbursing foreclosure relief. Florida has $1 billion set aside in Troubled Asset Relief Program (TARP) funds, supplied by taxpayers. The federal government created the Hardest Hit Fund (HHF) that has $7.6 billion in TARP funds, to help families in the states that were hardest hit following the housing market crash.

In a new report, TARP finds that “Florida has the lowest homeowner admission rate for relief funds offered by the organization, one of the highest withdrawn application rates and has consistently denied homeowners at higher rates than the national average.” With these findings, the report says that HHF Florida has not been as effective in helping homeowners in distress as the funds in other states.

According to the report, only 20 percent of the applicants for relief are accepted in Florida. The national average acceptance rate is about 48 percent. Florida is supposed to disburse its $1 billion in taxpayer loans by December 2017. However, five years into the program’s existence, Florida has spent only half of the funds, leaving many homeowners still in “critical need,” according to the report.

Florida homeowners were some of the hardest hit following the housing market crash; 18.3 percent of the 2.8 million homeowners who received foreclosure filings were in Florida. Nearly 6 percent of Florida households were in foreclosure- about three times the national average.

The report also reveals that the Treasury relies on homeowners to comply with a federal regulation prohibiting anyone convicted of a mortgage-related crime within 10 years from receiving HHR funds, which means homeowners must self-report if they have been convicted of a mortgage-related crime. This makes the fund “vulnerable to fraud and thwarting the intent of the Dodd-Frank Act,” according to the report.